COURT: LAWSUIT OK BECAUSE 5-YR-OLD’S SURVIVAL ‘IMPROBABLE’

January 1, 2012

The parents of a 5-year-old girl will move forward with their medical malpractice lawsuit against their daughter’s doctor, thanks to an appellate court. The parents claim that the doctor failed to diagnose the little girl’s cancer when they first brought it to the physician’s attention. That was just after she was born, her parents say. In the years since, the girl, J.D., has been through radiation treatments, chemotherapy cycles and surgeries for the rare muscle cancer.

The question at the heart of the case is whether J.D. would be healthier now if the doctor had diagnosed the cancer earlier. The parents say they asked about the bump on J.D.’s back for a year after she was born, but the doctor dismissed their concerns. A specialist finally diagnosed the cancer when J.D. was about a year old, but the cancer had spread by then, invading other parts of her body.

The parents argue that an earlier diagnosis would have improved the likelihood that J.D. would survive — a key point in their state, where chance of survival determines the validity of this kind of medical malpractice case. Their state recognizes an unusual rule: If the misdiagnosis leads to the patient’s chance of survival changing from likely to unlikely, the case can move forward. Oregon does not follow this rule.

For the court, the testimony of an expert was pivotal. The expert said that J.D. would have had a 60 percent chance of surviving if she’d been diagnosed promptly. The delay, however, changed that chance to 40 percent. It was more than a reduced chance of survival, the court said. It’s now improbable that J.D. will survive.

That was when the suit was filed, though, back in 2008. According to her mother, J.D.’s odds are worse now: She has just a 5 percent chance of survival.

The Savage Law Firm provides legal advice and representation for personal injury and civil litigation plaintiffs in Portland, Oregon, and communities throughout the western and central part of the state, including Beaverton, Lake Oswego, Gresham, Oregon City, Tigard, Milwaukie, Medford, Ashland, Grants Pass, Salem,
Corvallis and Eugene.

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